Open Access Research Article
ADVANCING TRANSFORMATIVE CONSTITUTIONALISM IN INDIA
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Article Details
ADVANCING TRANSFORMATIVE CONSTITUTIONALISM IN
INDIA
AUTHORED BY - A.BALAGURU*
Abstract
The Supreme Court of India has emerged as a
pivotal player in realising transformative constitutionalism. It has embraced
the concept of constitutional dialogue and engagement among the diverse
stakeholders in society and it envisions a participatory and deliberative
process wherein courts, legislature, civil society and marginalised communities
actively contribute to shaping the constitutional order capable of driving the
needs of social transformation and human flourishing. This paper examines the
challenges and contradictions that shape the trajectory of the journey of transformational
constitutionalism in India. By critically examining these challenges, we gain
insights into the complexities of judicial activism and the enduring quest for
a more just and equitable society. While there have been significant rulings
that have expanded fundamental rights, protected marginalized groups, and
promoted progressive change, there are also concerns about judicial overreach,
gaps in implementation, and ongoing systemic inequalities that hinder the full
realization of the transformative potential of the Constitution.
Keywords: Transformative Constitutionalism,
Constitutional Dialogue, Diverse Stakeholders, Judicial Activism, Progressive
Change.
I.
INTRODUCTION
In the view of Social Transformation,
Transformative constitutionalism is an important object in promoting the
traditional notions of understanding the constitution into a holistic view of interpreting
the constitution capable of driving the needs of societal changes. It
interprets the constitution in such a way that the norms and values are
actively shaped and reflect the aspirations and needs of the changing society.
Transformative constitutionalism can be studied from the preamble of the Constitution,
which pledges to secure justice, liberty, equality and fraternity. As a concept,
it has gained significant traction in constitutional discourse, particularly
where nations are grappling with transitions from authoritarian regimes,
colonial legacies, or entrenched social inequalities. The need for
transformative constitutionalism and adopting this concept in judicial
interpretation has become a need to address the struggles for liberation and
emancipation in various parts of the state. The word Transformative
Constitutionalism suggests that the idea of constitutionalism is not merely a
static set of legal norms but a dynamic process of societal transformation.
This shows that there is a commitment to harnessing the power of law and
institutions to bring about substantive changes in the lives of individuals and
communities. At its core, bridges the gap between formal legality and social
justice, ensuring constitutional safeguards to every citizen. Even in
established democracies, there is persistent challenges to democratic
governance due to inequalities, therefore the need of transformative
constitutionalism is growing to address systematic racism, economic
disparities, gender justice and environmental degradation. The advancement of
Transformative constitutionalism offers a framework for reimagining the role of
law in promoting the principles of social justice and human flourishing. In
recent years, the concept of transformative constitutionalism has found
resonance beyond the traditional boundaries of post-colonial or transitional
societies. When we go deeper into understanding the concept of transformative constitutionalism,
we can find that it is crucial to examine its key principles, debates, and
practical manifestations with respect to different national contexts.[1]
Transformative Constitutionalism rests on several foundational principles that
guide its application and interpretation, some of them are Equality and
Non-Discrimination, Social Justice, Democratic Participation, Human Dignity and
Pluralism.
A. Meaning of Transformative Constitutionalism
Transformative constitutionalism is about
harnessing the power of the Constitution and its institutions to bring about
substantive and structural changes to address historical injustices and promote
a more inclusive and egalitarian society. At a fundamental level transformative
constitutionalism challenges the traditional motion of constitutional law as a
neutral framework for resolving disputes and upholding individual rights.
Transformative constitutionalism underscores the idea of constitutional
dialogue and engagement among the diverse stakeholders in society and it
envision a participatory and deliberative process wherein courts, legislature,
civil society and marginalised community actively contribute to shaping the
constitutional order. Beyond nearly safeguarding individual rights
transformative constitutionalism seeks to address historical injustice address
structural inequalities and promote the will be of all members of society. It
prioritizes the interest of marginalised and vulnerable groups ensuring that
they are not nearly passive beneficiaries of constitutional protection but
active agents of social change.
B. Pursuit of Transformative Constitutionalism
The pursuit of transformative constitutionalism
is not without challenges critics race concerns about judicial overseas the
limits of legal formalism and the potential for backlash from entrenched
interest moreover the effectiveness of transformative constitutionalism depends
on broader societal factors such as political will and institutional capacity
the continuity is crucial for understanding the evolving nature of
constitutionalism and the dynamic interaction between law and society.
C. Tracing Transformative Constitutionalism
Historically the roots of transformative
constitutionalism can be traced back to various movements for social justice
and political emancipation from the struggles against colonialism and appetite
to the civil rights movement in the United States and the quest for
self-determination in post-colonial Nations transformative impulses have long
animated the quest for constitutional reforms and social change like India.
These movements late the ground work for the recognition of constitutional law
at a subordent tool for challenging operation promoting equality and fasting
human dignity moreover the continuity of transformative constitutionalism is
evident in the enduring quest for democratic governance and the rule of law transformative
constitutionalism represents a response to this perennial struggle offering a
vision of constitutionalism that is deeply rooted in democratic principles and
protection of fundamental rights contemporary challenges such as globalization
technology world characteristic complex in the dependency of sovereignty and
constitutionalism or being rea imagine in the year of contemporary challenges
transformative constitutionalism provides a framework for addressing this
challenges by promoting transnational solidarity environmental sustainability
and global justice. In India the continuity of transformative constitutionalism
is reflected in the Nations constitutional journey from colonial subjugation to
democratic self governance the constitution of India adopted in 1950
represented a transformative movement in the international history embody the
aspirations of a newly independent people for justice Liberty equality and
fraternity.[2]
over the decades the Indian judiciary has played a pivotal role in interpreting
and enforcing the transformative principles and enshrined in the constitution
often to progressive judgements that expand the scope of fundamental rights and
promote social welfare.[3]
D. Constitution, Constitutionalism and
Transformative Constitutionalism
While the Constitution provides the legal
framework for governance constitutionalism establishes the principles and
values that underpin the constitutional order. Constitutionalism promotes the
idea of constitutional democracy wherein popular sovereignty is tempered by the
rule of law and respect for minority rights ensuring that democratic
governments operate within the boundaries of constitutional constraints.
Transformative constitutionalism on the other hand represents a dynamic and forward-thinking
approach to constitutionalism that seeks to harness the power of law and
institutions to bring about social transformation and justice by understanding
the nuances and interrelationships between the concepts we can appreciate the
evolving nature of constitutional governance and its potential to shape
societies for the better. Transformative constitutionalism involve innovative
interpretations of constitutional provisions extensive readings of fundamental
rights and creative remedies aimed at addressing structural inequalities.
II. DEVELOPMENT
OF TRANSFORMATIVE CONSTITUTIONALISM IN MODERN INDIA
The initial years of Indian independence were a
pivotal moment in the nation's history, as a constituent assembly undertook the
challenging task of drafting a constitution that would not only establish
democratic governance but also pave the way for significant social
transformation. This constitution, with its comprehensive bill of rights,
provisions for affirmative action, and directive principles of Steel policy,
laid out a blueprint for socioeconomic change and the empowerment of
marginalized communities. Notably, key provisions like Article 15 and Article
17 demonstrated a firm commitment to eliminating deep-rooted forms of
discrimination and oppression. The Supreme Court of India emerged as a crucial
player in the realization of transformative constitutionalism, utilizing its
powers of judicial review to interpret the Constitution in a manner that
promotes social justice and human rights. Landmark cases such as Golaknath v.
State of Punjab in 1967 and Keshavanandha Bharathi v. state of Kerala
in 1973 grappled with questions of constitutional interpretation and the extent
of legislative power, reaffirming the supremacy of fundamental rights and the
foundational structure of the constitution. The advent of public interest
litigation in the 1980s marked a paradigm shift in the Indian legal landscape,
providing democratic access to justice and amplifying the voices of
marginalized communities. Public interest litigation served as a platform for activists,
NGOs, and concerned citizens to approach the courts on behalf of those who were
unable to assert their rights, thereby catalyzing transformative change in
areas such as environmental protection, gender equality, and socio-economic
rights.[4]
Throughout its history, the Supreme Court has handed down several landmark
judgments that have reshaped the contours of Indian society and advanced the
cause of transformative constitutionalism.[5] In
cases like Vishaka v. State of Rajasthan [6],
which addressed sexual harassment in the workplace, and Olga Tellis v.
Bombay Municipal Corporation[7],
which affirmed the right to livelihood as integral to the right to life, the
Court demonstrated its commitment to protecting the dignity and rights of the
most vulnerable sections of society.[8] The
journey of transformative constitutionalism in India has been marked by
challenges and contradictions the critics have raised concerns about judicial
over reach delays in the judicature process and instances of executive non
compliance with court orders which have Hind the effective implementation of
constitutional ideals moreover deep rooted social inequalities, caste based
discrimination and economic disparities continue to pose formidable obstacles
to the realisation of transformative change. Therefore the supreme court of the
custodian of the constitution has a vital role to play in UP holding the
principles of transformative constitutionalism and ensuring that constitutional
promises translate into tangible realities for all citizens.
III.
ADVANCING TRANSFORMATIVE CONSTITUTIONALISM
In the case of Keshavananda Bharati Case,
The Supreme Court of India has played a pivotal role in advancing the
transformative agenda by shaping the legal discourse and influencing societal
change. The case marked Constitutional history fundamentally altering the
landscape of constitutional jury students in the country, arising from a
challenge to the 24th amendment act, which sought to curtail the
amending power of the Indian Parliament. This case brought to the forefront the
delicate balance between parliamentary sovereignty and the supremacy of the
Constitution. The heart of the this case was the doctrine of basic structure, a
judicial craft principle that sought to delineate certain core principles and
values inherent in the constitution beyond the reach of parliamentary
amendments.[9]
The Supreme Court in a historic decision held that while Parliament possessed
the authority to amend the Constitution, such amendment must not violate its
basic structure.[10]
The Court’s recognition of the basic structure doctrine provided a framework
for future adjudications, enabling it to adapt constitutional principles to the
changing needs and aspirations of society.
This evolutionary approach
to constitutional interpretation has allowed the Indian judiciary to respond
effectively to emerging challenges and uphold the spirit of transformative
constitutionalism. In essence the Keshavananda Bharati case stands as a
testament to the resilience of India’s constitutional democracy and the
judiciary’s commitment to upholding its foundational principles. By enshrining the
doctrine of Basic Structure, it is reaffirmed that the Supreme Court has the
ultimate role in protecting the Constitution and is entrusted with the duty to
preserve the sanctity of the Constitution by advancing transformative
constitutionalism.
In the case of Vishaka
v. State of Rajasthan, the Supreme Court addressed the issue of sexual
harassment in the workplace following a brutal gang rape in Rajasthan. The
court acknowledged the absence of legislative safeguards and invoked
fundamental rights to fill this void.[11]The
court issued guidelines to protect women from sexual harassment in the
workplace. These guidelines are based on constitutional principles such as
equality, dignity, and the right to a safe work environment. They are
guaranteed under articles 14, 19, and 21 of the Indian Constitution. The
Visakhapatnam judgment led to significant changes in India's legal system,
challenging entrenched patriarchal norms and institutional apathy toward
gender-based violence. This judgment prompted legislative action, which
resulted in the enactment of the Sexual Harassment of Women at Workplace
(Prevention, Prohibition, and Redressal) Act in 2013, codifying and expanding
the guidelines. The Vishaka Judgment serves as a source of hope, reminding us
of the transformative potential of constitutional principles and the importance
of collective action in creating a fair and just society.
In the case of Indra
Sawhney v. Union of India[12], The Mandal case was a
significant milestone in addressing reservations in public employment and
educational institutions. The Supreme Court upheld the constitutional validity
of reservations and introduced the concept of the “creamy layer” to ensure that
the benefits of affirmative action reach the most deserving and economically
backward sections of society. Despite challenges, the introduction of the
creamy layer concept in the Mandal case represents a significant judicial
innovation balancing competing interests of principles and social justice for
inclusive development.
In Navtej Singh Johar v. Union of India[13], a five-judge bench of the Supreme Court of
India delivered a landmark judgment by striking down Section 377 of the Indian
Penal Code (IPC), which criminalized consensual homosexual acts between adults.
This historic decision not only rectified a grave historical injustice but also
marked a significant step towards inclusivity and acceptance in Indian society.
The case originated from a batch of petitions challenging the constitutionality
of Section 377, a colonial-era law introduced by the British in 1861. The
judgment, authored by Chief Justice of India Dipak Misra, held that Section 377
violated the rights to equality, dignity, and privacy guaranteed by the Indian
Constitution. The Court emphasized that the LGBTQ+ community is entitled to the
full range of constitutional rights and protections. By criminalizing
consensual same-sex acts, Section 377 had stigmatized and marginalized LGBTQ+
individuals, denying them equal protection under the law. The Court recognized
that sexual orientation is an inherent aspect of one's identity and autonomy
and criminalizing same-sex relations infringed on personal liberty. The
judgment underscored the principle of constitutional morality and reflected
contemporary societal values and norms. The striking down of Section 377 was
seen as a reaffirmation of India's commitment to democratic principles and
human rights. Navtej Singh Johar v. Union of India was a legal victory and a
triumph for social justice and inclusivity. It sparked celebrations across the
country and garnered widespread acclaim from human rights activists, LGBTQ+
organizations, and progressive segments of society. The judgment emboldened
LGBTQ+ individuals to assert their rights and identities openly, challenging
prevailing social prejudices and stereotypes.[14] The
Supreme Court's progressive stance represents a milestone for LGBTQ+ rights in
India, but challenges persist in areas such as employment, education,
healthcare, and family relations. Key issues yet to be comprehensively addressed
include legal recognition of same-sex relationships, adoption rights, and
protection from discrimination. While the Navtej Singh Johar v. Union of India
judgment affirmed principles of equality and personal liberty, achieving full
equality and inclusion will require sustained efforts from all stakeholders,
including the legislature, judiciary, civil society, and the LGBTQ+ community
itself.
The landmark case Puttaswamy v. Union of
India[15]
focused on the right to privacy in the digital age and its implications for
individual liberties and state surveillance. The Supreme Court affirmed privacy
as a fundamental right, imposing limitations on the state's ability to infringe
upon it. The judgment has profound ramifications for data protection regimes
and digital governance. Challenges remain in implementation and enforcement,
especially regarding the tension between privacy rights and national security
imperatives. Overall, the case represents a significant milestone in the
protection of privacy rights, but continued efforts are needed to realize its
full potential.
The Supreme Court's interpretations in landmark
cases such as Kesavananda Bharati, Vishaka, Navtej Singh Johar, Indra Sawhney,
and Puttaswamy have decisively shaped transformative constitutionalism in
India. Through these pronouncements, the Court has unambiguously expanded
fundamental rights, addressed systemic injustices, championed the cause of
marginalized communities, and steadfastly upheld the principles of equality,
dignity, and social justice. Nevertheless, challenges persist in translating
legal pronouncements into meaningful societal change, and the relentless
journey towards a more just and equitable society continues.
IV. PRINCIPLES
OF SOCIAL JUSTICE IN FOSTERING INCLUSIVE DEVELOPMENT.
The Supreme Court of India has consistently
reiterated the imperative of social justice in its jurisprudence, employing
various doctrines and principles to advance this cause such as the Principle
of Substantive Due Process, Transformative Equality, Right to Education,
Welfare State Obligations, Reservation Policies etc... The concept of substantive
due process focuses on whether the government is justified in interfering with
a person’s life, liberty, and property. It reflects the belief that a
constitution protects persons against unwarranted government interference,
including fundamental rights and unenumerated rights like the right to privacy.
Substantive due process requires that laws and state action must respect
unenumerated rights just as they must comply with the fundamental rights
expressly enshrined. The
Court has invoked the principle of substantive due process to ensure that
socio-economic rights are not merely illusory but possess substantive content.
In cases such as Olga Tellis v. Bombay Municipal Corporation, the Court
held that the right to life enshrined in Article 21 of the Constitution
includes the right to livelihood, emphasizing the state's obligation to provide
for the basic needs of its citizens.[16]
This expansive interpretation underscores the Court's commitment to addressing
socio-economic inequalities and promoting social justice.
Transformative Equality:
The doctrine of transformative equality underscores the need to go beyond
formal equality to achieve substantive equality in society. In Navtej Singh
Johar v. Union of India (2018), while decriminalizing consensual same-sex
relations, the Court emphasized that equality demands not merely the absence of
discrimination but the presence of affirmative action to uplift marginalized
communities. This recognition of transformative
equality reflects the Court's endeavor to dismantle entrenched hierarchies and
promote social justice for all.
Right to Education: Recognizing education as a
transformative tool for social empowerment, the Court has affirmed the right to
education as a fundamental right under Article 21-A of the Constitution. In the
landmark case of Unnikrishnan v. State of Andhra Pradesh (1993), the Court held
that education is intrinsic to the dignity of the individual and a means to
realize other fundamental rights.[17]
This acknowledgment underscores the Court's commitment to levelling the playing
field and ensuring equal access to opportunities for all segments of society.
Welfare State Obligations: The Court has
emphasized the state's obligations as a welfare state to ensure social justice
and equity. In Bandhua Mukti Morcha v. Union of India (1984), the Court held
that the right against exploitation enshrined in Article 23 encompasses the
state's duty to protect the vulnerable sections of society from exploitation
and abuse.[18]
This expansive interpretation underscores the Court's recognition of the
state's affirmative role in promoting social justice and welfare.
Reservation Policies: Affirmative action
through reservation policies has been a key tool employed by the Court to
address historical injustices and promote social justice. In Indra Sawhney
v. Union of India (1992), while upholding reservations in education and
employment, the Court emphasized the need for proportional representation of
historically disadvantaged groups in public institutions.[19] This
recognition of the need for compensatory discrimination reflects the Court's
commitment to leveling the playing field and ensuring substantive equality in
society.
By employing these doctrines and principles,
the Supreme Court of India has sought to realize the transformative potential
of constitutionalism, advancing the cause of social justice and inclusive
development in the nation.
V. PRINCIPLES OF PROPORTIONALITY AS A GUIDING DOCTRINE
When we look into the realm of transformative
constitutionalism, , the Supreme Court of India frequently finds itself
grappling with the complexities arising from conflicting rights and interests.
To address this intricate landscape, the Court has embraced the principle of
proportionality and the delicate equilibrium of rights as guiding principles in
its legal framework. Proportionality involves a meticulous assessment of the
relationship between the limitations imposed on a right and the legitimate objective
pursued by the state. The Court evaluates whether the restriction is essential,
proportionate, and the least intrusive means of achieving the state's goal.
This refined approach empowers the Court to uphold constitutional values while
acknowledging the valid interests of the state. Furthermore, the Court embarks
on a nuanced balancing act when confronted with competing rights and interests.
In situations where the exercise of one right may impinge upon another, the
Court endeavors to strike an equitable and unbiased balance that safeguards the
essence of each right. This involved balancing exercise encompasses a thorough
evaluation of the significance of each right in the specific context, ensuring
that neither right is unjustly curtailed. Through the application of
proportionality and the balancing of rights, the Supreme Court seeks to
reconcile conflicting interests in a manner that upholds the overarching
principles of justice, equality, and liberty. By adjudicating disputes with
sensitivity to the nuances of individual cases and the broader societal
context, the Court reiterates its dedication to transformative
constitutionalism.
VI. SUBSTANTIVE DEMOCRACY
Substantive Democracy
The Supreme Court of India has played a pivotal
role in safeguarding substantive democracy through its jurisprudential
interpretation. This includes protecting fundamental rights, asserting
constitutional supremacy, safeguarding minority rights, ensuring election
integrity, and promoting democratic governance and accountability. Substantive
democracy entails more than just periodic elections and majority rule; it
demands active participation, accountability, and the protection of fundamental
rights and freedoms for all citizens. The Supreme Court has played a pivotal
role in safeguarding substantive democracy through its jurisprudential
interpretation, emphasizing the following key aspects:
Judicial Review and Constitutional Supremacy in
view of Substantive democracy requires a robust system of checks and balances
to prevent the concentration of power and protect individual rights. The Court,
through its power of judicial review, has asserted the supremacy of the
Constitution and upheld its core values against legislative and executive
actions that threaten to undermine them. Landmark cases like Indira Nehru
Gandhi v. Raj Narain[20]
underscore the Court's commitment to upholding constitutional supremacy even in
the face of political challenges.
Protection of Minority Rights in a vibrant
democracy is characterized by the protection of minority rights and the
promotion of pluralism. The Court has played a crucial role in safeguarding the
rights of minorities, religious and linguistic, against majoritarian excesses.
Decisions such as Minerva Mills Ltd. v. Union of India[21]
exemplify the Court's dedication to preserving the rights of minorities as
integral to the democratic fabric of the nation.
When it comes to Election Integrity and
Electoral Reforms, the Free and fair elections are the cornerstone of
democracy. The Court has intervened to ensure the integrity of the electoral
process, instituting electoral reforms and combating electoral malpractices.
Cases like Association for Democratic Reforms v. Union of India[22]
have led to significant reforms such as the disclosure of criminal antecedents and
financial details of candidates, enhancing transparency and accountability in
the electoral process.
Democratic Governance and Accountability
resting while studying Substantive democracy, as it necessitates transparent
and accountable governance. The Court has held governments accountable for
their actions, ensuring adherence to constitutional principles and norms.
Landmark judgments like S.R. Bommai v. Union of India[23]
have affirmed the principle of democratic governance, emphasizing the
importance of accountability and constitutional morality in the functioning of
governments.
While protecting the fundamental rights at the
heart of substantive democracy lies the protection of rights and liberties. The
Court has zealously guarded these rights, ensuring that they are not mere
parchment guarantees but enforceable entitlements that shape the lives of
citizens. Decisions such as Kesavananda Bharati v. State of Kerala[24]
have reaffirmed the primacy of fundamental rights in the constitutional scheme,
laying down essential principles to safeguard them against legislative and
executive encroachments.
By safeguarding these principles, the Supreme
Court has played a crucial role in nurturing substantive democracy in India,
ensuring that democratic governance is not merely a procedural formality but a
substantive commitment to justice, equality, and the rule of law.
VII. REVIEW OF PAST
Joseph
Shine v. Union of India[25], The Supreme Court of India has recently ruled
that Section 488 of the Indian Penal Code and Section 189(3) of the Criminal
Procedure Code are unconstitutional as they infringe upon Articles 13, 15(3),
and 22 of the Constitution. The Court has also held that Section 497 of the
Indian Penal Code, which previously made adultery illegal for men without the
consent of their wives but not for women, is to be struck down. This decision
was made on the grounds that the law was discriminatory and arbitrary, and
violated women's rights to respect and liberty.
Sabrimala judgment:[26] The Supreme Court decision in 2018 granted
women aged ten to fifty access to the shrine, with a majority decision and a
notable dissenting opinion regarding constitutional perspectives. Justice
Chandrachud emphasized individual dignity and transformative constitutionalism,
while Justice Indu Malhotra emphasized religious rights and the need for
judicial restraint in religious affairs. According
to Justice Chandrachud, liberal constitutionalism is based on the idea of
individual dignity. He believes that the Indian constitution embodies the
principles of justice, liberty, equality, and brotherhood. He sought to use
'transformative constitutionalism' to address gender bias in society based on
the constitutional ideals. He interpreted Article 25 in the context of an
individual's right to religious freedom, stating that the right to visit the
Sabarimala shrine is protected under Article 25 as an essential aspect of a
woman's right to “profess, practice, and propagate religion.” Similarly, in her
dissenting opinion, Justice Indu Malhotra stressed the importance of religious
rights in constitutional morality. She viewed constitutional morality in the
context of “secularism” and non-interference, arguing that judicial restraint
in religious matters is necessary. She believes that constitutional morality is
not intended for a transformative purpose.
Shayara Bano v. Union of India:[27] In a recent case, the judiciary took a
stance as a reformer rather than a transformer by ruling that triple talaq is
unlawful in a 3:2 majority decision. However, two of the justices on the bench
expressed their view that the practice is a fundamental aspect of the Muslim
faith, citing Article 25 as protection. The Constitution of India does not
safeguard the practice of triple talaq due to the non-inclusion of activities
deemed “anti-Quranic” under the Muslim Personal Law Application Act of 1936.
The Court highlighted global advancements in Islamic family law and referenced
reforms made by “theocratic Islamic regimes” in its decision.
Dr. Maya D Chablani v. Radha Mittal: The case of Dr. Maya D Chablani vs Radha
Mittal (2021) was recently addressed by the Delhi High Court, and its ruling
was well-received by many individuals. The court applied the concept of the
'Right to life' as per Article 21 of the Indian Constitution to street dogs in
a very broad manner. It was determined in this case that street dogs have a
‘right to food’, and citizens are also entitled to feed them as long as they do
not infringe upon the rights of others. The HC also established specific
detailed guidelines regarding the feeding of these dogs. In reference to
Article 21, it was affirmed that this right also protects the lives of animals.
Anuradha Bhasin v. Union of India: During
the time when the Jammu and Kashmir Reorganisation Bill 2019 was passed, the
government imposed a ban on the internet and shut down all communications in
the region. Additionally, there was a restriction on the movement and assembly
of the public under section 144 of the Criminal Procedure Code. Journalists
were also barred from travelling and publishing any content, resulting in a
violation of Article 19(1)(a) which guarantees the right to freedom of
expression. The Supreme Court held that the right to access the internet is
encompassed within Article 19(1)(a) and declared that the restrictions on
journalists infringed upon Article 19(1)(g), which guarantees the freedom to
practice any profession, occupation, trade, and commerce over the internet.[28]
VIII.
CHALLENGES AND WAY FORWARD
In its pursuit of transformational
constitutionalism, the Supreme Court of India faces numerous criticisms and
obstacles. There are a lot of things that make it hard to achieve revolutionary
goals, like ideological disputes and institutional constraints, so people think
about the Court's role and how effective it is. The decision of the Delhi High
Court in the Naz Foundation case was heavily influenced by the idea of
"Constitutional Morality," which must be emphasized. The State had
argued that the imposition of public morality through legislation may be a
legitimate government objective, and the court was considering this argument.
The court responded by severely rejecting the state's argument, citing Article
21's statement that public morality or disapproval cannot be used as a basis to
curtail basic rights. Public morality differs from constitutional morality in
that it is more susceptible to shifting and individual conceptions of what is
right and evil. Contrary to popular belief, only "constitutional"
morality can provide a rationale for a strong governmental interest. Even
though it represents the majority view, constitutional morality should be given
more weight in our framework than popular morality.
With respect to Judicial Constraints, the
constraints that are imposed by the legal system present the Supreme Court with
a number of fundamental obstacles when it comes to putting transformational
constitutionalism into practice. As a result of the adjudicative role that it
plays, the Court is frequently confronted with issues regarding judicial
exceeding its authority. There are limitations placed on the Supreme Court's
ability to intervene in policy matters by the doctrine of separation of powers,
which makes it more difficult for the Court to bring about systemic change that
extends beyond the sphere of law.
In addressing issues in ground realities, although
the Court may deliver transformative judgments, translating these
pronouncements into meaningful action is a major obstacle. The gap between
judicial directives and on-the-ground realities undermines the effectiveness of
transformative constitutionalism. Bureaucratic inertia, resource constraints,
and administrative hurdles often hinder the enforcement of Court orders, diminishing
their impact on marginalized communities and vulnerable populations. India's
complex socio-economic landscape presents formidable challenges to
transformative constitutionalism. Structural inequalities, poverty, and
marginalization exacerbate barriers to social justice and equitable
development. The Court's ability to address systemic injustices is often
limited by its reliance on legal remedies, overlooking the broader
socio-economic determinants that perpetuate inequality and exclusion.[29]
Marginalized Communities Victims of Systemic
Neglect: The implementation gap
disproportionately affects marginalized communities, who are often the intended
beneficiaries of transformative constitutional interventions.[30]
Despite legal protections and affirmative action measures, marginalized groups
such as Dalits, Adivasis, sexual minorities and religious minorities continue
to face systemic discrimination and socio-economic exclusion.[31] The
failure to effectively implement transformative directives perpetuates cycles
of marginalization and reinforces existing patterns of inequality.
Concomitant Consequences and Opposition are the
aggressive attitude that the Supreme Court takes on social matters frequently
results in pushback and opposition from conservative sectors and vested
interests across the country. Significant challenges to attaining revolutionary
goals include opposition from political parties, scrutiny from the media, and
criticism from the general public. When contentious matters concerning cultural
traditions or religious liberties are brought up, they spark polarized
disputes, which in turn undermine the legitimacy and authority of the Supreme
Court. It is understood that, transformative constitutionalism is subject to
ideological contestations within the judiciary. Divergent judicial philosophies
and interpretative approaches shape the Court's jurisprudence and lead to
debates about constitutional rights. Liberal interpretations emphasizing
progressive values clash with conservative perspectives advocating for judicial
restraint, resulting in conflicting judgments and doctrinal inconsistencies.
Thus, when we navigate the terrain of
transformative constitutionalism, the Supreme Court of India confronts a
multitude of challenges and criticisms that shape its transformative agenda.
From institutional constraints to ideological divides, the journey towards
societal transformation is fraught with obstacles that test the Court's
resilience and efficacy. By critically examining these challenges, we gain
insights into the complexities of judicial activism and the enduring quest for
a more just and equitable society. Amidst the array of differing viewpoints,
the complex challenge lies in finding the delicate balance between judicial
activism and judicial restraint. The judiciary is tasked with the proactive
safeguarding of constitutional values and the equitable dispensation of
justice, while also demonstrating prudence and restraint in deference to the
separation of powers and democratic mandates. Navigating this intricate
equilibrium necessitates a nuanced comprehension of the judiciary's role in a
democratic society and a steadfast dedication to upholding the rule of law.
Legal empowerment begins with education, particularly in marginalized
communities that often lack awareness of rights and legal procedures. It is
crucial to have community legal education initiatives to address this knowledge
gap, empowering individuals to assert their rights and navigate legal processes
effectively. These initiatives involve organizing workshops, seminars, and
outreach programs to fit the specific needs and contexts of marginalized
communities. Community legal education programs serve several purposes, such as
enhancing legal literacy, cultivating legal awareness, advocating for preventive
legal strategies, and promoting community mobilization. To maximize the impact
of community legal education initiatives, it is essential to have collaboration
between legal professionals, civil society organizations, and community
leaders. These partnerships ensure that educational materials are culturally
sensitive, linguistically accessible, and customized to the specific needs of
target communities. Transformative constitutionalism is a powerful concept that
envisions societal change based on justice, equality, and dignity. It
challenges us to move beyond rigid legal frameworks and consider the real-life
experiences of those who have been historically marginalized and oppressed.
This approach requires a judiciary that actively works towards social
transformation, rather than simply resolving disputes. While there have been
significant rulings that have expanded fundamental rights, protected
marginalized groups, and promoted progressive change, there are also concerns
about judicial overreach, gaps in implementation, and ongoing systemic
inequalities that hinder the full realization of the transformative potential
of the Constitution.
[1] Biehl, Janet
and Albie Sachs, Transformative Constitutionalism, 87 Tul. L. Rev. 969
(2012).
[2] Madhav Khosla,
“The Indian Constitution”, Oxford University Press (2012)
[3] S.P.Sathe, “
Judicial Activism in India: Transgressing Borders and Enforcing Limits”, Oxford
University Press (2002)
[4] Videh Upadhyay, “Public
Interest Litigation in India: Concepts, Cases and Concerns” (Lexis Nexis,
2007).
[5] Upendra
Baxi, “The Indian Supreme Court and
Politics” (Eastern Book Company, 2000)
[6] Vishaka and Ors. v. State
of Rajasthan and Ors., AIR 1997 SC 3011
[7] Olga Tellis and ors v.
Bombay Municipal Corporation and ors., 1985 SCC (3) 545
[8] Hans Dembowski, “Taking the
State to Court Public Interest Litigation and the Public Sphere in Metropolitan
India” (New Delhi: Oxford University Press, 2001)
[9] Granville
Austin, “The Indian Constitution:
Cornerstone of a Nation”, Oxford University Press, Oxford (1996)
[10] Keshavananda
Bharati v. State of Kerala, AIR 1973 SC1461
[11] Vishaka v.
State of Rajasthan, AIR 1997 SC 3011
[12] Indra
Sawhney v. Union of India, AIR 1993 SC 477
[14] Navtej Johar, “The LGBTQ+
Activists Behind India's Historic Ruling”, BBC News, September 7, 2018.
[25] Joseph
Shine v. Union of India AIR (2018) 2 SCC 189
[26] Indian Young
Lawyers Association and Ors. v. The State of Kerala., (2019) 11 SCC 1.
[29] N. Gupta, Socio-Economic
Realities and Transformative Constitutionalism, 35, 102-120 no. 6 Economic and
Political Weekly (2021).
Article Information
ADVANCING TRANSFORMATIVE CONSTITUTIONALISM IN INDIA
Authors: A.BALAGURU
- Journal IJLRA
- ISSN 2582-6433
- Published 2025/03/22
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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